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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, July 19, 2010

Connecticut campaign finance law gets mixed First Amendment verdict

Connecticut has had its share of corrupt politicians. The state tried to regulate campaigns by enacting a campaign finance law that dictates who gets how much public money to wage campaigns. The Second Circuit holds that some of these provisions violate the First Amendment and are therefore unconstitutional.

The case is Green Party of Connecticut v. Garfield, decided on July 13. Under the Connecticut law, major parties get public funding. Major parties are defined as parties that got 20 percent of the gubernatorial vote in the last election or whose membership comprises at least 20 percent of the state's registered voters. Minor parties qualify for full public funding if the candidate got 20 percent of the vote in the same race in the last election. Under a formula devised by the State Legislature, minor party candidates who got fewer votes (10 to 20 percent) in the last election receive less than full public funding. The same percentages also apply if minor party candidates can get enough petitions for the election in question.

The law also has "trigger provisions," which means that candidates get additional public funding if their opponents have both opted-out of the public financing system and receive contributions or spend more than an amount equal to the participating (and presumably less well-financed) candidate.

The legal standards governing cases like this are quite complicated. When the Supreme Court hands down a campaign finance decision in a First Amendment case, the rulings are usually so long that no one except for law professors (and a small sliver of the rest of the population) actually reads them in full. Here is what the Court of Appeals did in this case in a nutshell:

1. The State is allowed to condition public money on a showing of public support on the basis of prior vote totals. It may also, consistent with the First Amendment, set the single-election criterion at such percentages as 20 percent of the vote for full funding and 10 percent for one-third funding. The Court of Appeals' intuition is that these percentages are too high for minor parties to qualify, but the evidence at trial shows that this scheme is not "so high as to shut-out minor-party candidates who enjoy public support." It is also legal for the state to require minor party candidates to show statewide support, as hard as that may be in some instances.

2. But the trigger provisions are unconstitutional in light of the Supreme Court's recent decision, Davis v. Federal Election Commission, 128 S.Ct. 2759 (2008), an unusual decision that should have gotten more attention, holding that the "millionaire's amendment" enacted by Congress was unconstitutional because it allowed less-wealthy candidates to receive additional public funding if rich candidates spent too much money on their own campaigns. The millionaire's amendment violated the First Amendment because it essentially penalized candidates who spent robustly on their campaigns, allowing poorer candidates to receive a special benefit in the form of additional campaign finance money. Davis essentially looks out for the speech rights of the wealthiest candidates, further proof perhaps that money can buy you not only love but certain First Amendment protections. Anyway, the Connecticut law resembles the millionaire's amendment. As the Roberts Court took the millionaire's amendment out with the trash a few years ago, the Court of Appeals does the same with the comparable law in Connecticut.